Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (8) TMI 94 - DELHI HIGH COURT

2016 (8) TMI 94 - DELHI HIGH COURT - 2016 (45) S.T.R. 33 (Del.) - Best judgement assessment to determine service tax liability - Validity of show cause notice - failure of the Respondent to furnish the requisite information, and further failure to file returns under Section 70 of the Finance Act, 1994 - Held that:- In the impugned order, the CESTAT noted that in the SCN there was no allegation that in terms of Section 72 (b) of the Act, the Respondent had filed a return and failed to assess tax .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ossibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN was issued invoking Section 72(a) of the Act was nonexistent. Secondly, the SCN does not make out a case for invoking Section 72 (b) of the Act. Consequently, the question of adopting best judgment assessment did not aris .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the order dated 6th October 2015 passed by the Central Excise Service Tax Appellate Tribunal (CESTAT) reversing an order dated 1st March 2012 passed by the Commissioner (Appeals), whereby it was concluded that the Show Cause Notice ( SCN‟) dated 20th October 2010, issued by the Department to the Respondent/Assessee was maintainable. 2. The brief facts are that, initially, on 8th April 2010 an SCN was issued to the Respondent by the Department for the period 2004-05 to 2008-09, categorizin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t‟), the impugned SCN dated 20th October, 2010 was issued invoking Section 72 of the Act. 3. For ready reference Section 72 of the Act reads as under: ...72. Best Judgment Assessment - If any person liable to pay service tax, - a. fails to furnish the return under Section 70; b. having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder. The Central Excise Officer, may require the person to produce such accounts, documents or ot .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

st judgment envisages two contingencies. One, under Section 72(a), where a person liable to pay service tax fails to furnish the return under Section 70 . The other under Section 72 (b), where the person liable to pay service tax files a return but fails to assess the tax in accordance with the provisions of this Chapter or rules made thereunder . 5. In para 5 of the SCN dated 20th October 2010 it was stated that the Respondent failed to furnish returns in terms of Section 70 of the Act for the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g Section 72 (a) of the Act. As regards the alleged failure to provide information, it was pointed out that the Department has issued letters dated 03.06.2010, 05.07.2010, 28.07.2010,03.09.2010 and 01.10.2010 by giving reference to the previous SCN and requested the Respondent to furnish "following month wise information/details/documents for the period from April 2009 to March 2010", without even mentioning the information/details required by the Department. In the circumstances, the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lhi held that although "it is a fact that the department has called for information from the party without specifically mentioning the nature of information required. However, it is also a fact that the said letters issued to them clearly mention about the earlier SCN dated 08.4.10 for which subsequent information for the period 2009-10 was called for. The party was well aware of the Issues raised in the SCN dated 08.4.10, therefore, the contention of the party that the letters do not menti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Hon'ble High Court after issue of present SCN without waiting for adjudication proceedings which are quasi judicial in nature." Further it was held that since the Respondent had failed to furnish the information sought, the Department was justified in invoking Section 72 "to protect the Govt. revenue." The SCN dated 20th October 2010 was accordingly held to be maintainable. 9. It has been noted by the Commissioner (Appeals) in the order dated 1st March, 2012 that in the le .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uot;...for the sake of discussion, even if we presume that the second SCN is not maintainable because the department has assessed the tax liability of the appellant on the basis of Best judge assessment, then the duty liability on the appellant still remains. The non issuance of second SCN does not absolve the appellant of their tax liability demanded in the 1st SCN and more so since the same stands confirmed by the original authority." Accordingly the appeal was dismissed. 10. In the impug .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on the basis of assumption and presumption." Consequently, the CESTAT held the SCN to be not maintainable. 11. Mr. Pramod Rai, learned counsel for the Department, was unable to point out how Section 72 (a) could possibly be invoked when a admittedly the return for the period April to September, 2009 had been filed on 22nd October 2009 and for the period October 2009 to March 2010 on 22nd April 2010 with the jurisdictional service tax office. Therefore, the factual basis on which the SCN wa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version